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How to Choose a Divorce Lawyer in Australia

Choosing a divorce lawyer in Australia should be like making any other big Should be divorce process like when you buy a house or choose a school for your children. Educate yourself, ask around, ask questions, and research on the internet.

Learn about the divorce laws first. This is important for two reasons. One, it will give you an idea of what’s involved, which in turn gives you a better sense of control. The second reason is that it means you’re better informed, so when you start looking for a lawyer, you’ll better understand what he or she is talking about.

Do your research. 

Ask friends and family, call your local law society, ask others who have been through a divorce, and search the internet. Build up a list of names, including lawyers people recommended not to use.

Figure out what kind of lawyer you need. 

Ask yourself what kind of person you want to work with. Are you looking for an aggressive fighter who will get you everything you want and win the battle or do you want someone who can get results with a more gentle approach? Do you need someone who will explain everything to you each step of the way or do you prefer to let go and leave the whole burden to the lawyer?

Narrow down your list.

Do some background checking on the names you received. Look them up on the internet. If he or she wrote any articles or papers, read them. This will give you a sense of who this person is and their knowledge of the field. Ask other people who used the lawyer. A few bad recommendations should tell you not to hire this person.

Choose a family lawyer.

Family law is a very specialized area. Your brother’s best friend might be an amazing criminal lawyer, but that’s not too helpful when you have a parenting dispute with your former spouse.

Start with a phone call

You can learn a lot just from that first call. How long does it take for the lawyer to call you back? How does the lawyer treat you on the phone? Use this opportunity to ask about fees. You might discover immediately that their price is too high for you. If you decide you do want to meet them, find out if they charge for an initial meeting. Most lawyers do charge for a first consultation.

Interview before you hire.

Set up appointments with the lawyers who sound right. Look at this as a job interview – where you are the employer. How are you treated during the interview? Is the lawyer answering calls or checking emails? Is he slandering other lawyers, or worse, other clients? Do you feel you can confide in this person? Sometimes a first read is not correct, but sometimes it’s good to go with your gut feeling. You know what works for you.

Consulting with other experts. 

Family law requires knowledge in other fields, such as business, wills, estates, etc. Does the lawyer have other professionals to consult with? You want your lawyer to give you a full picture of the situation and the possible outcomes. Broader knowledge may be required.

When you choose, get it in writing. 

An agreement should include what the lawyer’s work will include and his or her fees. Does he work hourly or by the case? What about additional fees or changes in circumstances? Emergencies?

What Does a Divorce Kit Contain?

The divorce kit provides all the information that an applicant needs to file for divorce in Australia. The divorce kit outlines the steps one needs to take to apply for a divorce. It also provides the application form to be filled in by the applicant. There is no standard format of the divorce kit as it is provided in a number of different formats. The applicant can choose the one that best suits their needs after consultation with a divorce lawyer.

The divorce kit also provides an online version of the application form that needs to be printed out after it has been filled in by the applicant and then submitted to the Federal Magistrates Court. The Federal Magistrates Court Rules provide that the application form be printed on one side of the sheet only. The kit also specifies the fees that the applicant needs to pay at the time they submit the application form with the Federal Magistrates Court. The kit also specifies the instances where the applicant may be entitled to a reduction in the divorce fee. The law allows for the payment to be made in cash as well as via cheques, money orders and credit card.

In addition to the above, the divorce kit also contains information about the process to be followed during court hearings and how the outcome of the application is being determined. Applicants can use the application form to fill in details of up to four children. Applicants who have more than four children can use the special attachment form that comes with the divorce kit. Finally, the online application form can also be submitted electronically through the portal of the Commonwealth Courts. The divorce kit is an indispensable tool for divorce applicants and may be the best source of information on how to get a divorce in Australia.

The divorce process demystified

Transcript

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists. Today I want to discuss a number of issues related to divorce.

I want to stress that these issues are best handled by a lawyer. I would encourage you to talk with a lawyer and to read more about these issues on our website before you take any steps on your own.

Divorce, according to Australian law, is the end of a legal marriage. That is, it’s a change in status for those in the couple. From a legal angle, it only involves those two people, not their children, not their property or the financial obligations they might have.

While all of those factors are affected by divorce, divorce itself is a fairly straightforward matter in Australia. Also, at least for now in Australia, legal divorce can only happen between a man and a woman. That’s because marriage in Australia is only legally recognised between a man and a woman.

Other couples, like same sex couples or couples who had been living together for a long time but chose not to get married, may be recognised as what’s called de facto couples. They may have many of the same rights as a married couple. But, if they choose to end their relationship they do not have to go through the process of divorce.

Divorce in Australia is no fault. This means that there doesn’t have to be a reason given for the divorce. If even one person wants to end the marriage, to get a divorce they have the legal right to end it.

There are, however, a number of conditions that need to be met before a couple can get divorced. You must be separated from each other for at least 12 months and 1 day. The court may even ask for proof that you were separated for this period of time before granting the divorce.

While generally separation means living apart from one another there are cases where a couple is considered separated even though they live in the same home. But, in this case the burden of proof is even greater, and there are a number of conditions that must be met.

So, if you are separated but living together in the same house, make sure you meet those other requirements. They include not having sexual relations, living in separate rooms, not attending social functions together, and not providing household services to each other like cooking and laundry. This shows the court that you really have ended your relationship. You can read more about this on our website.

Once you’re separated for a year and one day you can fill out an application for divorce. The application mostly asks about personal details like name, addresses, details about children, and the marriage and separation date. But, it also asks if there are other outstanding family issues in the court like property division, and this information needs to be listed.

The application must be signed in front of a lawyer, or justice of the peace, or someone else who can witness a document. Then, it’s filed with the court along with two copies and a copy of your marriage certificate. There is also a fee that you’ll need to pay when you file the application.

If you both wanted the divorce and both filled out the application then you’ll each get a copy from the court and wait for a hearing date. If only you filed the application then you have to serve the application on your spouse which means that your spouse has to get a copy of the application. Generally, a spouse is served by sending by registered mail. Your spouse can receive the application personally by hand, but you may not bring it to him or her. Someone else over the age of 18 has to serve him or her by hand.

Now, again, Australia has no fault divorce, so if one person wants the divorce there isn’t much the other spouse can do to prevent it. But, once the other spouse has the application he or she can fight the divorce by filing what’s called a response to divorce and claiming there wasn’t a separation of 12 months and 1 day or by arguing that the particular court doesn’t have the right to hear this case. Then, the case will have to be heard by the court.

But, assuming the other partner doesn’t fight the application, you will have a hearing at the court to just verify the facts of the case. The law doesn’t require everyone to attend the hearing, but you do have to go to court if you have children under 18 and only one of you apply for the divorce. If you filed a response to divorce you should probably go to the court since the judge will want to hear from you.

Now, I want to talk a bit about what happens in court. This is often scary for people, partly because just the idea of being in court is frightening and also because of the emotional side of divorce. But, it’s just a formal procedure where the judge or the registrar reviews the application. He checks that everything written is correct. The judge might ask you or your spouse some questions, too. If you have children, the judge will also want to know that everything is arranged for them, things like where they’ll live and how they’ll be supported.

Once everything is clear to the court they’ll announce that the divorce is complete and the marriage has ended. You’ll get a divorce order from the court through the mail, and this is proof of the divorce. The divorce is actually final only one month and one day from the date of the hearing. Only at that point, one month and one day, can you remarry.

You can find the application for divorce on the Internet, but we recommend you speak to a lawyer to be sure you haven’t missed out anything and to make sure you know all of your rights. You may also like to visit our online divorce service, onlinedivorce.com.au.

Thank you for watching this video. I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists.

Tax Implications and Divorce

This article is designed to address the tax consequences of certain divorce-related actions, such as spousal maintenance and property division. This area is very complex and nuanced, and while we will provide a broad framework for the tax implications related to divorce, should you need specific information or have questions about your situation, please consult your lawyer or a tax specialist. In fact, we advise that you consult a tax adviser even in straightforward cases, just so you will not experience any unexpected tax consequences.

Maintenance Exemption and Deduction

Maintenance payments are exempt from the receiver’s income tax if the payments are made to a person who is or has been a spouse of the one paying maintenance, to or for the benefit of a child of the payer, or to or for the benefit of a child of the other party to the marriage. This exemption extends to maintenance received by a de-facto spouse, as well. The general rule is that there is no tax assessed on maintenance received.

The exemption will only apply to payments attributable to the maintenance payer – and not in situations where the payer makes the payments to divest himself or herself of an income-producing asset or to divert ordinary income that would otherwise be taxable. Essentially, the exemption will not apply if the payer is not acting improperly.

With regard to deductions, the maintenance payer may not deduct maintenance payments from his salary or wages; spousal maintenance may not be claimed as a tax deduction.

Property Division

The tax that is sure to rear its head in the property division area is the capital gains tax. Capital gains taxes are triggered upon the happening of a capital gain event, which can be a gain or a loss of assets. There are more than 50 events enumerated in the Income Tax Assessment Act (ITAA), and they range from the disposal of a capital gains tax asset to the grant of an option or lease.

Certain assets and transactions are exempt from the capital gains tax, including vehicles (that carry less than 1 ton and hold less than nine passengers), trading stock, and the disposal of a life insurance policy by the original beneficial owner of the policy. The right to payment from a superannuation fund or other approved deposit fund is also excluded from capital gains tax.

Capital gains and losses related to the dissolution of a marriage or de facto relationship are exempt from capital gains tax.

The law also provides for certain roll-over relief for transfers between spouses. For instance, if your former spouse transfers an asset with capital gains tax attributes, the roll-over relief allows you to take it as the transferor had it (with the same capital gains tax attributes). Additionally, if an asset was a personal use asset to the transferor, it will be considered a personal use asset to the transferee as well, and special rules apply to calculating capital gains for these assets.

There are specially carved out rules with regard to dwellings and capital gains taxes. Particularly if the main residence is used for business purposes as well – in this case, a special exemption to capital gains tax will apply.

Superannuation, specifically the splitting of superannuation, carries its own tax implications. For instance, if one surrenders their rights to payment out of this type of fund, the capital gains tax provisions will not apply. Additionally, when dealing with splitting certain tax concessions like roll-over relief can apply. Moreover, certain public sector funds will even have untaxed elements or other schemes not subject to tax.

With the lengthy list of exemptions and complexity of capital gains tax law, sometimes it is necessary to make decisions as to how you and your spouse plan to treat certain capital gains tax assets. For instance, you will have to decide which dwelling will be considered the main residence, or you may choose to nominate multiple dwellings as the main residence. These choices you make will certainly have tax implications and thus should be decided prior to any transfer. Typically parties agree to these choices by signing a statement prior to transferring the property but bear in mind that once a choice has been made, it is binding and cannot be changed or altered later.

Legal costs can also result in tax implications. They are considered in part of a capital gains calculation as incidental costs related to the disposal or acquisition of a capital gains asset. These costs should be considered separately from the asset and should be treated differently. Additionally, money spent on legal or tax advice might be deductible under the ITAA.

Property Orders

The court is given broad discretion with regard to property orders and has the power to alter property interests as it sees fit. However, the court is to consider the implications of capital gains taxes that will arise if a party is forced to dispose of property by order of the court.

Certain exemptions and concessions under capital gain tax law may be available if a property order causes a capital gains tax event to occur. For instance, an order requiring the transfer of property may trigger the marriage breakdown roll-over relief provisions.

As you can imagine the tax implications that can arise through divorce are boundless. The law is very complex; this article is merely intended to give you an idea of the implications and consequences so you may be prepared to address these issues with regard to your specific situation.

I have just separated from my partner with whom I have been living – What steps should I take?

If your former partner chooses to dispute the date you separated, you may be required to prove when the separation happened. You may be in a position where you live with your former partner temporarily while you make other arrangements. In this event, you will want proof of the date on which separation occurred. One way to prove you have separated from your partner is to have it confirmed in dated written format, ideally signed by both you and your former partner. If a written and dated document will be difficult to acquire, then a text message to your former partner can often suffice.

Proof of Separation

If a precise date of separation isn’t known because it was a gradual process that happened over some time, it may be required for the Family Court to determine when the separation occurred. In this circumstance, the Family Court will look at factors such as:

• When did you and your former partner start sleeping in separate rooms?
• Did either you or your former partner inform family and friends that you had separated?
• When were you and your former partner’s financial affairs formally separated?
• When were you and your former partner last intimate with each other?
• When did you and your former partner stop carrying out domestic duties such as washing and cooking for each other?
• When did you or your former partner lodge formal documents, such as ATO or Centrelink documents, on the basis that you were separated?

What are some of the first steps you can take following separation?

• Setting up a bank account in your name may be a good first step to gaining financial independence. The date on which the new back account was created may also provide supporting evidence of when separation occurred.
• Formalizing your separation may include agreeing with your former partner to close any joint bank accounts you have together. Arrange for any scheduled transfers to now be facilitated via a personal bank account that only you can access.
• Carry out a financial audit to identify and value all the assets, liabilities and superannuation – in your name, your former partner’s name or an entity controlled by you and / or your former partner.
• Obtain a copy of your current superannuation member statement.
• Consider if it is necessary to protect yourself against the risk of your former partner drawing down from your bank accounts or incurring credit card debt without your prior consent and instruct your bank as to any protective action you wish to have taken.

Take the next step, contact Mathews Family Law

The next step is to book a free 15-minute telephone consultation with an accredited family law specialist at Mathews Family Law and receive specific advice about your situation. Our family law property lawyers and specialist solicitors are ready to help.

Book a free consultation with a divorce law lawyer online today.

Family Law and Mediation – Is Mediation Appropriate For Me?

Mediation (also known as ‘Family Dispute Resolution) is a powerful tool for resolving parenting child custody and property settlement asset division disputes following separation and divorce, with a greater sense of satisfaction and ownership by the parties of the resulting agreement.

You may be feeling uncertain about whether or not FDR / mediation is ‘appropriate’ for you.

The answer to this question may or may not be obvious, for example:

1. FDR / mediation will be obviously not appropriate if a party refuses an invitation to attend an initial intake meeting with an FDRP / mediator –all FDR / mediations commence with an initial intake session, including risk assessment. The decision to participate in FDR / mediation must be voluntary and cannot be ‘imposed’.
2.  FDR / mediation may be appropriate even if a party expresses concern about a power imbalance and their capacity to participate – alternative modes of FDR / mediation will be considered at the initial intake meeting, including the options of joint sessions, shuttle mediation, remote attendance via skype/telephone/email. The availability of alternative modes enhances access to FDR / mediation.
3. FDR / mediation will be appropriate if both parties consent to attend – a choice of mode of attendance ensures that parties wishing for a non-litigious approach have the opportunity to utilize FDR / mediation notwithstanding concern about doing so.

For more than a decade Vanessa Mathews, accredited family law specialist and accredited FDRP and Mediator, has been providing FDR / mediation services in conjunction with her work as a family lawyer in Melbourne’s eastern suburbs. During this time Vanessa has provided FDR / mediation to hundreds of clients. Whilst there will always be the need for the Family Court to resolve the most complex parenting child custody and property settlement asset division matters, Vanessa continues to be in awe of, and humbled by, clients who choose to take responsibility for their parenting child custody and property settlement asset division and spousal maintenance issues via FDR / mediation – rather than have a Family Court Judge do this for them.

Vanessa is available to assist you to achieve a mediated agreement to:

1. Resolve your parenting issues including:

1. Interim issues:
   i. Child custody following separation, eg shared care
   ii. Single issue disputes, eg choice of school
2. Final issues:
   i. Child custody when one parent wishes to relocate with the children
   ii. Ongoing parenting child custody arrangements
3. Documentation of agreements
   i. Parenting Plan
   ii. Family Court Consent Orders

2. Negotiate property settlement and spousal maintenance issues including:

1. Interim issues:
   i. The use or sale of the home following separation
   ii. Child support
   iii. Spousal maintenance
   iv. Disclosure and valuation of assets
2. Final issues
   i. Property settlement asset division
   ii. Child support
   iii. Spousal maintenance
   iv. Superannuation splitting
3. Finalization of the agreement:
   i. Family Court Consent Orders
   ii. Binding Financial Agreements

Please contact Mathews Family Law & Mediation Specialists on 1300 635 529 to discuss your FDR / mediation needs.

Mathews Family Law & Mediation Specialists offer fixed fees for FDR / Mediation.

In 2019:

• Vanessa Mathews and Mathews Family Law & Mediation Specialists are rated by ‘Three Best Rated’ as one of the three best divorce lawyers in Melbourne.
• Vanessa Mathews is recognized by Doyle’s Guide to the Legal Professional as a ‘Recommended Family Lawyer’ and ‘Recommended Family Law Mediator’ in Melbourne.
• Mathews Family Law & Mediation Specialists won the Global Law Experts Awards for ‘Best Family Law Firm Australia’ and ‘Best Family Law Mediator Australia’ awards.
• Mathews Family Law & Mediation Specialists is a family law firm in the eastern suburbs of Melbourne – Level 2, 599 Malvern Road, Toorak.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

• how far apart the parents live to form each other
• the parent’s current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents
• the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
• the impact that an arrangement of that kind would have on the child
• such other matters as the court consider relevant

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimizes cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counseling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained in how to give advice concerning disputes but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you choose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. The benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order however in most cases, it is a parent, the child, or a grandparent who is seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point, the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail the responsibilities and rights of both parents and its aim should be to create an arrangement in the best interest of the child. A parenting plan should include a breakdown of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on its own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, a conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and acting in the best interest of the child. The presence of an ICL should minimize the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they choose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child-related issues

The court takes on several principle roles when it comes to child-related proceedings. First, during the proceedings, the court is to consider both the needs of the child and the impact that the proceedings may have on the child. Essentially, the court’s role is to minimize any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally, the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, and the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

• application and affidavit of the parties
• expert affidavit
• oral evidence (testimony)
• testimony/reports from an independent children’s lawyer
• family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

Superannuation in Property Division

When a couple separates or divorces, or a de facto relationship[i] ends, a property must be divided. The property includes all of the assets – houses, cars, jewelry, furniture – and all of the liabilities, like loans and mortgages.  Superannuation – the money individuals set aside to have when they retire – is now also included in those assets that need to be divided fairly between a couple, whether married, de facto heterosexual or de facto same sex.  In the past, superannuation was considered a financial resource, similar to salary or other income. Today, however, most couples weigh superannuation funds as if they are marital assets or property.

Part VIIIB of the Family Law Act, 1975 (FLA) covers issues dealing with superannuation and families. The law requires that the superannuation benefits due to one spouse or de facto partner must be divided with the other spouse or partner. But there are several difficulties with dividing superannuation. Firstly, if a couple divorces before retirement, the superannuation funds are not yet available. So while a couple may divide up their property at the age of 45, they may not see funds from superannuation for another 20 or 30 years.  Other problems…..

The law recognizes these problems and offers three ways a divorcing couple can divide superannuation interests.

1. “Split”.  The first method is to split the interest into two accounts or benefits. This can be done either by a payment split when the superannuation becomes due (say, at retirement) or through an interesting split, which means each partner receives a superannuation interest. With an interesting split, the partner receiving the new benefit can keep the money in the original account until it comes due, or open an entirely new account. Nobody receives an actual cash payment – the money remains in a superannuation fund.  Tax issues must be calculated before the payment or interest is split.
2. “Flag”.  The second approach to dividing superannuation is to flag the benefit for a later date. In this scenario, the couple marks the benefit and the trustee of the superannuation fund is not allowed to touch it until the “flag” is lifted, either by agreement of the parties or with a court order.  The couple can then decide what happens to the fund only later after the person who owns the superannuation account retires.
3. Leave it alone.  In this case, couples consider superannuation a financial resource. When dividing up their assets, superannuation is only included in the calculation as a source of income, not as an asset.

Splitting the Superannuation Now

Typically, divorcing couples split their superannuation. Most couples choose this approach because it enables them to know exactly how much money they are receiving and allows them to make a clean break, without having to return to financial issues ten, twenty or thirty years later.

There are several steps needed to split the superannuation:

Step 1:  Request information from the partner’s superannuation fund.  

 There are two forms that a spouse must submit to the trustee of the superannuation fund:

1. Form 6 Declaration, which proves to the trustee that you are entitled to see the information and
2. the Superannuation Information Request Form. These forms can be obtained online

You must be “eligible” to receive the information from the fund.  An eligible person is:

1. The member of the fund or
2. The spouse of the member of the fund or
3. If (1) or (2) died, the deceased person’s legal representative or
4. Someone who plans to enter into a superannuation agreement with the member

Step 2: Evaluating information from the superannuation fund.  

The law requires the fund to provide information to the member of the fund and his or her spouse. The fund may provide information regarding the value of the superannuation or information that helps the person requesting information determine the value of the fund. The trustee should also notify the requester whether or not the fund may be split.  Once this information is obtained, the numbers must be calculated using specific formulas, depending on the type of fund. An expert in family law or accounting can help determine the correct formula to use in order to obtain the correct amount of interest each party is entitled to from the superannuation.

Step 3:  Turn to the courts for an order.   

Couples may sign their own splitting agreement and take it directly to the trustee of the superannuation fund. Alternatively, couples can turn to the courts with their own financial agreement already signed. Finally, if a couple can’t agree, they may obtain a court order.

1. If both sides agree about the value of the fund and it’s division, they can submit an Application for Consent Orders, which includes their agreement regarding superannuation. This agreement is binding only if both parties signed it AND both received independent legal advice.  This is the case regarding all financial agreements between couples divorcing.
   

   De facto couples terminating their relationship may also submit a financial agreement regarding superannuation, but only if they were residents of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.

2. If the parties cannot come to their own agreement, they may turn to the court for Orders.

In either case, the trustee of the fund must be notified that the court is being asked to give orders. This is to ensure that the request being made complies with the fund’s rules. Also, the trustee is entitled to attend the court hearing and oppose the orders.

Step 4: Send a copy of the agreement or court order to the superfund trustee. 

Once the court gives orders, the superannuation fund must be sent a sealed copy of the decision.

Step 5: Split the superannuation benefit. 

Generally, the superannuation benefit will be split into two funds, one for each partner. There may be administrative costs for splitting the fund.

Contact Mathews Family Law to speak with one of our specialist solicitors and family law property lawyers to discuss your superannuation split today. Call our office on 03 9804 7991 and book a consultation with a divorce and family law attorney.

[i] Laws on the splitting of superannuation do not apply to de facto couples from Western Australia.

Dividing The Property In Australia

 Transcript

Hi, I’m Vanessa Mathews for Mathews Family Law & Mediation Specialists, and I’m going to be talking about property distribution today. Property distribution is about how the assets and liabilities of the marriage or de facto relationship are divided.

Assets are the things of value that you own, like, a home, a car, a bank account, investments, savings, superannuation, and furniture. Liabilities are the things you owe to others, like, a mortgage or a loan or even credit card debt.

For the most part, when it comes to questions of property and property division, de facto couples have the same rights and obligations as married couples. But some of the laws are different for de facto couples, depending on the state or territory they’re living. So you should always get professional legal advice to be sure how the law applies to your particular situation.

When a couple splits up, if they are married or if they’re in a de facto relationship, all of their property, both the assets and the liabilities, have to be divided between them. That is, they have to decide who owns what and who owes what.

When people come to me for help, I often hear things, like, ‘I don’t have to give him anything. I earn all the money, so it’s all mine.’ Or ‘She spent so much of our money over the years, she doesn’t deserve anything.’ Well, the law doesn’t work on emotions, but instead on the assumption that both people contributed to the marriage, perhaps in different ways, but both worked for the benefit of the shared union.

Now, some couples divide their property by themselves or with help from friends or professionals. If you choose to work it out just between the two of you, you can decide to split your property however you like. Generally, if you work with lawyers or through mediation, you have to follow the same four-step process the court uses, which I’ll discuss later on.

You can also do this property division at any time before you’re married and this is called a prenuptial agreement or even after you are married or when you’re in the process of divorcing.

Once you come to an agreement and sign this document, you can submit it to the court by applying for a Consent Order, if you want to, but you don’t have to. The court will allow you to make your own decisions but will want to know that each of you had professional advice when you made the agreement so that one side is not being duped or misunderstood something.

A Consent Order means your agreement has the strength of a court decision. So if one side breaches or goes against the agreement, you can take action against them immediately, without having to first sue, and get a court verdict.

If you can’t work out the property issues on your own, you can go to the court and let a judge decide for you. The law has a very logical approach to dividing up the property, which is the four-step process I mentioned earlier. The first step is to figure out what actually are the marital assets and debts. You can start out by putting everything together, the house, cars, mortgage, loan, furniture, and calling that your property. If the couple has been together for only a short time, the court might remove certain things from the pile of matrimonial property. These are things that belonged to each individual before they married or started their de facto relationship.
So if you brought a car or a house to the marriage, and then you got divorced, the car would be yours. In the same way, if you came with a mortgage to the marriage, that debt is still yours if you get divorced.

But if you’re married for say, 10 or 15 or 20 years, a court, if it goes to court, will probably consider most of your joint marital property. And despite the rules in other countries, even property one partner may have inherited during the marriage or de facto relationship, is still considered joint marital property.

The second step of this four-step process is to consider the contributions each side made to the marriage. There are two types of contributions partners can make. One is clear financial contributions, like, salaries, other types of income, inheritance, actual money or some type of physical property. But there are also non-financial contributions. For example, if one parent stayed home to take care of the children, they’ve contributed by saving money on daycare and enabling the other spouse to develop professionally and earn more. And by simply helping the family unit develop.

The next step is to consider the future needs of each partner. If the couple is older, and one partner never worked outside the home, the court will take into consideration that he or she may need more of the joint property, since they are less able to now go out and find a job. On the other hand, the court will also note that there are no small children, the mortgage is paid off, and there are no large expenses to be paid. So the financial needs are smaller than they once were.

If both people are young professionals with a good future outlook, the court will take that into consideration too. Also, does one partner still have to stay home to care for the children for an extended period of time, leaving them with less income? The court will also look at the health of each person. The one thing the court does not consider is whose fault is it, that the marriage or de facto relationship ended.

Australia has no-fault divorce, meaning there does not have to be a reason or cause for the divorce, other than one side asking for it. So blame has no impact on the property.

The fourth and final step is for the court to take all of this into consideration and make a just and equitable division of the property. That is, the court will split up the assets and the liabilities in a way that gives each partner what he or she needs and deserves. Just and equitable doesn’t mean everything will be split evenly and each person gets 50 percent. When the court decides who gets what and who pays what, the court will explain how this process will work.

So if the superannuation needs to be split, but the side can only get money in ten years, the judge will need to decide what happens in ten years or if there is a house and its value needs to be split between the two sides, the judge will decide if it should be sold, and the money from the sale divided or if one person will pay the other person his or her share, or if one person keeps the house and the other gets some other property of equal value.

A few suggestions I would make when you begin thinking about dividing your property, make sure that as you create a list of your assets and liabilities, you don’t overlook anything significant. For example, people often forget superannuation or other retirement plans.

If you’re thinking about separating or if you’re in the process, and the need to be plain about how you’re going to deal with your property, start gathering documents, like, financial statements, tax returns, mutual fund statements, bank statements, check account statements. Make copies if you can, and keep them in a safe place.

If you have questions about property distribution or any of the issues related to divorce and separation, please visit our website, and feel free to call me to set up an appointment. I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists.